N3439
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1135 0F 2008

THE STATE

V

JUSTIN IPA

Kimbe: Cannings J

2008: 12, 22 August

SENTENCE

CRIMINAL LAW – grievous bodily harm – Criminal Code, Section 319 – sentence on plea of guilty – 3 years.

A man pleaded guilty to doing grievous bodily harm to another man by slashing his face with a bushknife. The victim provoked the incident by throwing a full beer bottle at the offender.  

Held:

(1)	The starting point for sentencing purposes is in the middle of the available range: 42 months imprisonment. 

(2)	A sentence of three years was imposed, none of which was suspended. 

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Charles Kaona CR 459/2007, 24.08.07
The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06
The State v Ludwina Waiguma CR 68/2007, 21.03.07
The State v Nicodemus Badui CR 683/2007, 17.08.07
The State v Ria Bernard CR 374/2005, 20.05.05
The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05

Abbreviations

The following abbreviations appear in the judgment:

cm – centimetre
CR – Criminal
GBH – grievous bodily harm
J – Justice
K – kina
N – National Court judgment
No – number
SCRA – Supreme Court Criminal Appeal
SDA – Seventh Day Adventist
v – versus

SENTENCE

This was a judgment on sentence for grievous bodily harm.

Counsel

F Popeu, for the State
T Gene, for the offender

1.          CANNINGS J:   Justin Ipa, a 19-year-old school student, has pleaded guilty to doing grievous bodily harm to a 34-year-old man, Lambert Talingapua, an auditor with the West New Britain Provincial Government. 

2.          The incident happened on a Saturday night in the Kimbe suburb of Section 10 in September 2007. Justin went with a friend to a nearby liquor shop to buy beer. Around the same time Lambert went to the same shop, also to buy beer, and also with a friend.

3.          Lambert and his friend were walking back to their house, with two cartons of beer, when they were suddenly confronted by a group of youths who reefed the cartons from them and ran off. Lambert looked around and saw Justin – who happened to be standing there, waiting for his friend to come out of the liquor shop – and, thinking that Justin was with the group that had just stolen his beer, threw a full bottle of beer at him. He missed. But Justin, who was already under the influence of liquor, was angered by Lambert’s actions. He was carrying a short bushknife and retaliated by swinging it at Lambert, striking him on his left cheek and inflicting a serious injury: a 10 cm long wound, 1 cm deep. 

4.          Lambert had to be given emergency hospital treatment. According to a report by Dr Joseph Nale of Kimbe General Hospital, Lambert has been left with a permanent facial disfigurement and will have difficulties chewing food, with no guarantee of improvement.

5.          Though there was an element of provocation involved, Justin’s actions were unlawful. I accepted the guilty plea and convicted him of unlawfully doing grievous bodily harm, an offence under Section 315 of the Criminal Code. 

ANTECEDENTS

6.            The offender has no prior convictions. 

ALLOCUTUS

7.          The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I was innocent. Lambert should have retaliated against the people who took his beer. It was not me. However, I apologise for what I have done. I ask for mercy. 

OTHER MATTERS OF FACT

8.          As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). In that regard, I will take into account that:

•	The victim provoked him.
•	He surrendered to the police and co-operated with them.
•	He has paid some compensation to the victim (K2,630.00 cash).

PRE-SENTENCE REPORT

9.          A pre-sentence report prepared by the Kimbe branch of the Community Correction and Rehabilitation Service reveals that Justin has strong parental support. His father is employed. He also has strong support in the local community, where he is well regarded. He was a member of the SDA Church but appears to be no longer committed to church doctrine. He smokes cigarettes and drinks alcohol. He was doing grade 9 at the Christian Integrated School when he committed the offence but withdrew from school because of the incident. He wants to continue his education. However, the victim, Lambert Talingapua, wants to see Justin punished. The cash he received was only bel sori money, not enough to compensate him for what he has been through and what he will endure for the rest of his life. He wants K10,000.00. The report concludes that Justin Ipa is suitable for probation. 

SUBMISSIONS BY DEFENCE COUNSEL

10.          Mr Gene submitted that because of the numerous mitigating factors, the sentence should be at the lower end of the range. Two years would be sufficient and it should all be suspended. 

SUBMISSIONS BY THE STATE

11.           Mr Popeu agreed that part of the sentence could be suspended but the use of the bushknife made it a serious case and called for a deterrent sentence. 

DECISION MAKING PROCESS

12.          To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13.          The maximum penalty under Section 319 (grievous bodily harm) of the Criminal Code is seven years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14.          In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of three years, six months (42 months) as the starting point.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

15.          Before I fix a sentence, I will consider sentences I have imposed in recent times for GBH offences, as shown in the table below.

SENTENCES FOR GBH UNDER SECTION 319 OF THE CRIMINAL CODE, 
WEST NEW BRITAIN, CANNINGS J, 2005-2007

No	Case	Details	Sentence	
1	The State v Ria Bernard CR 374/2005, 20.05.05	Guilty plea – 29-year-old offender was under the influence of alcohol – cut his brother with a bushknife – then cut his father when he came to his brother’s aid – life threatening injuries.	4 years 
each count; total 8 years, cumulative sentence	
2	The State v Rodney Gela and Clarence Logi CR 1300 + 1301/2005, 27.10.05	Guilty plea – victim and both co-offenders had been drinking – argument between one of the offenders and victim – degree of participation or type of weapons used – bushknife and a tree branch – victim stabbed in abdomen, suffers permanent injury.	6 years,
4 years
	
3	The State v Bob Ananias CR 1413 + 1414/2003, 20.04.06	Guilty plea – offender believed that two people were sorcerers and made his mother sick – he held the victims captive then assaulted them – he injured one of them badly, slashing him with a bushknife, injuring his leg and cutting off one finger – victim stabbed in abdomen, suffers permanent injury.	3 years
	
4	The State v Ludwina Waiguma CR 68/2007, 21.03.07	Guilty plea – female offender stabbed another woman with a knife, after a history of bad feeling between them – offender claimed the victim had been saying bad things about her, due to suspicion that she was having an affair with the victim’s husband.	4 years
	
5	The State v Nicodemus Badui CR 683/2007, 17.08.07	Guilty plea – drunk offender went to a house, armed with a grassknife, angry with someone he suspected of having an affair with his wife – had altercation with occupants of the house – wounded one of them, severing two of his fingers.	4 years	

6	The State v Charles Kaona CR 459/2007, 24.08.07	Guilty plea – the victim was alleged to have committed adultery with another man’s wife – two clans had a confrontation and in the course of it the offender slashed the victim with a bushknife while he was on the ground; shortly afterwards the victim was shot dead by another member of the offender’s clan.	4 years	

STEP 4: WHAT IS THE HEAD SENTENCE?

16.          Mitigating factors are:

•	substantial provocation by the victim;
•	sole attacker;
•	injury caused by a single blow;
•	it was a spontaneous incident, involving no planning; 
•	the offender surrendered to the police;
•	cooperated with police;
•	some compensation paid;
•	pleaded guilty;
•	expressed some remorse;
•	first-time offender;
•	good family and community support.

17.          Aggravating factors are:

•	use of a dangerous weapon;
•	the injury could easily have been fatal;
•	the victim has suffered permanent injuries. 

18.          In weighing all these factors I place great weight on the provocation given by the victim, the guilty plea and the fact that the offender surrendered to and co-operated fully with the police. However, the aggravating factors are very strong. I impose a head sentence of three years imprisonment. 

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19.          The offender has spent no time in custody yet so there is nothing to deduct. 

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20.          The favourable pre-sentence report may appear to warrant a partial suspension. However, I agree with Mr Popeu’s submission that the use of the bushknife and the seriousness and permanency of the victim’s injuries mean that the offender must spend a considerable time in custody. This will interfere with his education but that is the price he must pay for what he has done. I will not suspend any part of the sentence. 

SENTENCE

21.          Justin Ipa, having been convicted of one count of unlawfully doing grievous bodily harm, is sentenced as follows:

Length of sentence imposed	3 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	3 years	
Amount of sentence suspended	Nil 	
Time to be served in custody	3 years	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly.
___________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender